Saturday, 22 September 2012

Apple update T&Cs

I have been discussing the apple T&Cs with a friend and we disagree on the meaning. I am known for reading legal documents like an engineer, so may have the wrong end of the stick here.

(b) Apple, at its discretion, may make available future iOS Software Updates for your iOS Device. The iOS Software Updates, if any, may not necessarily include all existing software features or new features that Apple releases for newer or other models of iOS Devices. The terms of this License will govern any iOS Software Updates provided by Apple that replace and/or supplement the Original iOS Software product, unless such iOS Software Update is accompanied by a separate license in which case the terms of that license will govern.

My problem is that an update may not include all existing features. To my mind it was not clear that the fact an update may not include an existing feature means the existing feature is actually taken away rather than left as is and not updated.

This is obviously important when considering how apple have actually taken away key features as part of the update to iOS6. Not just breaking maps in many ways, but taking away streetview and usable aerial imagery of where I live.

Surely a term in a contract which allows the supplier of a product to actually remove key features from the operation of that product at a later date, is one that has to be specifically drawn to the attention of the customer (more so than the usual click-through of standard terms)? I am struggling to find the legislation covering that though!

(2)As against a person dealing as consumer, liability for breach of the obligations arising from—(a)[F3section 13, 14, or 15 of the 1979 Act](sellers’s implied undertakings as to conformity of goods with description or sample, or as to their quality or fitness for a particular purpose);(b)section 9, 10 or 11 of the 1973 Act (the corresponding things in relation to hire-purchase),cannot be excluded or restricted by reference to any contract term.

Now, the "sample" I looked at in the shop when buying this product had good maps with good aerial imagery and streetview. Now the product does not comply with that. Contract terms allowing that change are excluded, surely?

But, I am no lawyer. It just feels very unfair that key features of something I own has been taken away from me, simply by doing an "update".

6 comments:

I imagine apple would take the view that the device you sampled in the shop hasn't changed, the software has and you are told how the software is going to change and you could go and sample their new software in a shop if you wish, and decide whether or not to update based upon that sample?

Well, most people are not actually told that streetview is being removed or that the useful "satellite" images are being removed for lots of places. Show me where Apple show Sandra, for example, that in the update process? They did not. Even T&Cs that say some features might not be in the update don't make it actually clear they are removing (as opposed to simply not updating) those features, and the update did not list which were being removed or offer a choice to update without removing them. But even if they did, in the T&Cs, the point is that such T&Cs may not actually be valid as they make the goods fail to confirm to what was "sold" in the first place in some substantial way.

Yes, it's wrong, but Sony removing OtherOS (Linux support) in an "update" to their PS3 seemed to show that judges/law either needs to catch up or change dramatically, as the court case results that came in around the world generally sided with Sony.(the update was mandatory IIRC due to the Playstation Network being disabled and a fair number of games simply not working if you did not do the update)Seems that software/firmware is not viewed as relevant, and only that it is working as intended (by the manufacturer)It's going to be interesting in the UK, the manufacturer can destroy a device with a firmward update, but it's the retailer that is liable...

IAAL, and I guess Apple would argue that the sentence is meant to be read:

iOS Software Updates may not include ("all existing software features" || "new features that Apple releases for newer or other models of iOS Devices".)

You might make a case under http://www.legislation.gov.uk/uksi/1999/2083/schedule/2/made. Unfortunately, though, it's not a black and white case and there's plenty of scope for argument. If you're interested in this area, this is a good read: http://futureoftheinternet.org/

I am not sure the brackets help - my issue really is the use of the concept of an "update" and what is and is not included in the update. After all if an update does not include "words with friends app" then does that just leave "words with friends app" not updated or does it remove it. If an update does not include the "youtube app" does that make the "youtube app" vanish or just not be updated. How is the average end user meant to understand being omitted from an update means it is taken away, or under what circumstances it is not taken away. The "youtube app" is a good example as it looked like any other app. Maps perhaps less so as it is clearly integrated in to many apps in the same way so more obviously part of the iOS. But consumers are not to know this, and even if they did know, I don't the terms making it at all clear that not being included in the update means it is "taken away", or that such a clause is valid under unfair contract terms legislation.

It's clear to people who understand how firmware works that "iOS Software Updates" means "new firmware" which "may not include all existing software features". However, people who understand the finer points of embedded devices are probably not Apple's target market.

They'd be wise to rewrite that section of their terms to be clear that "Apple may remove certain features when you install an updated operating system, and you might not be able to return to the previous operating system or regain those features on your device".

So, Apple might argue:

1. a replacement Maps program was provided. Unreasonableness is judged against the circumstances - for an optional software update that includes a large number of features it's probably not unreasonable to change or remove a few of them.

2. the iOS EULA states "Apple and its licensors reserve the right to change, suspend, remove, or disable access to any Services at any time without notice". Maps - having a server component - would certainly be considered a Service. Although you may still query the fairness of an onerous term hidden in the small print like this: (I) arguably consumers are getting used to services changing, being withdrawn or being replaced from time to time; (II) at least it's clearer than the definition of iOS Software Updates.

3. As a software licence the EULA is exempt from consumer protection law:

For an assessment of this argument, set out more cogently than I can manage at midnight, read Appendix C to the Law Commission's Issues Paper on this topic: http://lawcommission.justice.gov.uk/areas/unfair_terms_in_contracts.htm

If you feel strongly about this you can reply to BIS's consultation: http://discuss.bis.gov.uk/consumer-bill-of-rights/ - running until 5 Oct.

Anyway, I found this blog whilst trying to make sense of FTTP pricing... arguably even more complex! I might need to give you a call...